The People v. Trent Wayne Swisher

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)

November 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,v.TRENT WAYNE SWISHER, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF090380)

The opinion of the court was delivered by: Mauro , J.

P. v. Swisher

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Trent Wayne Swisher was convicted of evading a police officer and driving with a revoked license. He contends on appeal that the trial court abused its discretion in denying his request to dismiss a prior strike conviction for mayhem, because the trial court failed to consider his background, character and prospects.

We conclude that the trial court did not abuse its discretion in denying defendant's request to dismiss the prior strike conviction. The trial court considered defendant's criminal history and the information in the probation report. In addition, the trial court considered defendant's background, character and prospects in denying a previous request to dismiss the strike, but in making the second request, defendant failed to show that there were changed circumstances.

We will affirm the trial court's order.

BACKGROUND

Officer Ryan Piercy was on patrol in a marked vehicle when he observed defendant driving a white Nissan. As Piercy turned to follow the Nissan, defendant accelerated through a stop sign. Piercy activated his lights and siren and pursued defendant's vehicle. Rather than stopping, defendant ran a red light at approximately 70 to 75 miles per hour, at times reaching speeds of 90 miles per hour. The speed limit was 25 miles per hour in residential areas and no more than 35 miles per hour in other areas. During the pursuit, defendant ran another stop sign and three more red lights.

A jury found defendant guilty of evading a police officer with reckless driving, and driving with a revoked license. The trial court found that defendant had previously served separate prior prison terms for felony convictions and that he had been convicted of a serious felony (mayhem), which was a prior strike. Defendant asked the trial court to consider dismissing the prior strike pursuant to Penal Code section 1385,*fn1 but the trial court determined that it would not strike the prior conviction. The trial court sentenced defendant to 10 years in prison. Defendant appealed, and we affirmed the judgment on October 28, 2010.

Meanwhile, in March 2010, defendant moved to recall his sentence pursuant to section 1170, subdivision (d), arguing he was entitled to additional presentence credit under section 4019. The trial court ordered the probation department to recalculate defendant's credit.

At the December 2010 hearing on the motion to recall the sentence and for consideration of defendant's entitlement to additional presentence credit, defense counsel also asked again that the trial court dismiss defendant's prior strike conviction pursuant to section 1385. Unlike the first request to dismiss, in which defense counsel sought to dismiss the strike so that defendant's sentence would not be doubled, this time defense counsel sought to dismiss the strike so that defendant could be eligible for increased presentence credit. Recent amendments to sections 2933 and 4019, which took effect after defendant was sentenced, increased the amount of presentence credit for certain prisoners, but not for those convicted of serious felonies. Defendant was ineligible for additional credit under those recent amendments because his prior strike conviction for mayhem was a serious felony. (§§ 1192.7, subd. (c)(2), 2933, former subd. (e)(3), 4019, subds. (b), (c).)

The People opposed defendant's request to dismiss the prior strike, maintaining that the trial court should not reconsider a request that it had denied previously "for a felon who has a very violent history . . . ."

The trial court denied the request to dismiss the prior strike and awarded defendant presentence custody credit under section 4019.

DISCUSSION

Defendant contends the trial court abused its discretion in summarily denying his second request to dismiss the prior strike conviction, thereby precluding his eligibility for additional presentence credit.*fn2 Defendant argues the trial court failed to consider his circumstances as a whole and neglected to consider his character and prospects. We disagree.

"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a section 1385 request under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.)

The probation officer's report, prepared for the initial sentencing hearing in November 2009, showed that defendant, who was 37 years old, had a criminal history dating back 19 years. He had been convicted of the following: (1) petty theft and forgery in December 1990; (2) mayhem in October 1991; (3) escape in 1992, in Idaho; (4) inflicting corporal injury on a cohabitant in 2000; (5) failing to stop at the scene of an accident involving an injury in 2006; (6) possession of a controlled substance in 2007; and (7) misdemeanor resisting a police officer in 2008. Furthermore, defendant violated parole multiple times. As defendant concedes, his prior history with the criminal justice system "has not been exemplary."

The trial court considered the probation report, which provides ample basis to deny the request to dismiss the strike prior. In addition, the trial court considered defendant's circumstances when it ruled on his prior request to dismiss. At that time, the trial court said "this is not a case where the Court would strike any strikes. [Defendant's] record and prospects and character and history prohibit that." There is no evidence in the record demonstrating that anything had changed between the time the trial court made this comment and its denial of defendant's second request a year later. Although defense counsel argued that defendant had completed four anger management programs and had been a model prisoner while he was in custody, counsel was referring to factors he had proffered to the trial court previously in connection with the first request to dismiss the strike. The trial court was not swayed by the argument.

Defendant has not demonstrated that the trial court failed to consider his circumstances or abused its discretion in denying his request to dismiss the prior strike so that he would be eligible for more presentence custody credits.

DISPOSITION

The order denying the request to dismiss the prior strike is affirmed.

We concur: RAYE , P. J. NICHOLSON , J.

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